5 chapter 12 miscellaneous matters 2141 section 11

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children shall be deemed children of the wife and every such tsip (para 11.5). (Chapter 12 – miscellaneous matters) 21.41 Section 11 should be repealed as it preserves two systems of inheritance of a deceased intestate within one jurisdiction (para 12.6). If this recommendation is not followed, the section should be amended, so that its operation is limited only to non-exempted land in the New Territories which is held for the benefit of a Chinese clan, family, Tong or Tso (para 12.9). 21.42 Section 5(5) of the Ordinance should be repealed (para 12.11). The provision has been judicially criticised for creating capricious results. 21.43 In view of the reforms recommended to equate the property rights of illegitimate persons with those of legitimate persons and the greater difficulty to be expected in ascertaining whether there are claims from the former, provision should be added to the Probate and Administration Ordinance carefully delimiting the tortious liability of personal representatives (para 12.12). 21.44 Section 4's reference to the "Crown" should be removed and replaced by another suitable expression (para 12.15). 86
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Recommended amendments concerning deceased persons' families and dependants (Chapter 13 – introduction) 21.45 The Commission's general recommendation is that the various anomalies in Hong Kong's present deceased's family maintenance legislation would best be remedied by the repeal of the Deceased's Family Maintenance Ordinance Cap 129, and the enactment of a new replacement Ordinance similar to the English Inheritance (Provision for Family and Dependants) Act 1975 (para 13.5). (Chapter 14 – those entitled to apply) 21.46 The use of the term "dependant" to describe those who may apply under the present Deceased's Family Maintenance Ordinance, should be dispensed with. In its place, the particular classes of persons who may apply for family provision should be set out (para 14.4). 21.47 The specific classes of "wife or husband of the deceased", "former husband or former wife of the deceased who has not remarried" and "tsip or male partner of the deceased by a union of concubinage" should be included within the classes of persons entitled to apply for provision (paras 14.5 and 14.9). 21.48 The present Ordinance does not contain a definition of either "husband" or "wife". The new legislation should contain a definition of "'husband' or 'wife' in relation to the deceased." This definition should extend to include void marriages entered into in good faith (para 14.6). 21.49 The present definition of "valid marriage" contained in the Deceased's Family Maintenance Ordinance should be retained (para 14.7). 21.50 The classes of persons entitled to apply for provision should be extended to include a former or judicially separated spouse who has not remarried (para 14.8). 21.51 Except for the meanings ascribed to the terms "tsip" and "union of concubinage", the transitional provisions in the Deceased's Family Maintenance Ordinance which deal with concubinage, comprising section 17 and the Schedule should be repealed (para 14.9).
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